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Investigation heavily influenced by HR may render dismissal unfair

The Employment Appeal Tribunal (EAT) has held that where an investigating officer’s recommendations are heavily influenced by input from HR, any subsequent dismissal may be rendered unfair.

Background

Mr Ramphal was employed by the Department of Transport as a compliance inspector and had to spend a significant amount of time on the road. He had a company credit card to pay for hire cars and subsistence. Personal expenditure was prohibited and there were limits on subsistence claims. Mr Ramphal was investigated by his employer due to concerns over his excessive petrol use, use of a hire car for personal reasons and suspicious subsistence purchases.

The investigating officer’s original report was critical of Mr Ramphal but found that his misuse of the company credit card was not deliberate and his explanations regarding petrol expenditure were consistent and plausible. The report recommended a finding of misconduct and a final written warning. However, after comments and amendments were made by HR over a period of six months and favourable comments removed, the final report found Mr Ramphal guilty of gross misconduct for which he was summarily dismissed.

Mr Ramphal claimed unfair dismissal but was unsuccessful in the Employment Tribunal. He appealed to the EAT.

What does this mean?

The EAT allowed the appeal indicating that there had been improper influence by HR and remitted the case back to the Employment Tribunal for a decision.

The EAT held, in accordance with previous case law, that the report of an investigating officer must be the product of their own investigations. Although a dismissing or investigating officer is entitled to seek guidance from HR, such advice should be limited to matters of law and procedure (as opposed to matters of culpability). HR is permitted to assist the investigating officer in the presentation of their report, but only for example by ensuring that all necessary matters have been addressed and to achieve clarity.

What should employers do?

This case provides useful guidance for employers as to exactly how much involvement and influence HR should have over disciplinary matters. It emphasises that improper influence by HR could compromise the fairness of an investigation. It is for the investigating officer to carry out the investigation and establish the facts and HR should only provide support in relation to matters of law and procedure, not culpability.

Compare jurisdictions: Employment & Labor: International

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